Failure to File Lawsuit Against Uninsured Motorist Does Not Bar Uninsured Motorist Claim.
Posner v. St. Paul Fire & Marine, Inc. (2004), 104 Ohio St.3d 621, 2004-Ohio-7105
In Posner, the Ohio Supreme Court considered whether “if an insured does not file a wrongful death suit against the tortfeasor with[in] the two year statute of limitations set forth in R.C. 2125.02(D), is he or she ‘legally entitled to recover damages’ against the tortfeasor under R.C. 3937.18 and, therefore, able to maintain an un[der]insured or uninsured motorists claim?” The Court determined that it would only examine the statute if the polices at issue did not address this issue. Further, since the policies “at issue in this case make filing a lawsuit nonmandatory…[there was no] need for this court to interpret R.C. 3937.18.” Thus, the analysis was based solely upon the policy language.
In Posner, Wanda Chenault died as a result of being injured by an uninsured and uncollectible motorist. Several of her relatives submitted UM/UIM claims under their own policies issued by Nationwide and Motorists Mutual. The insureds notified their respective carriers but none of them sued the tortfeasor within the applicable statute of limitations. Afterwards, declaratory judgment actions were brought by the insureds and the cases were consolidated.
The Supreme Court examined two insurance policies, one written by Nationwide and the other by Motorist Mutual. In reviewing both policies, several duties must be undertaken by the insured prior to seeking UM/UIM coverage. Some of these duties included prompt notification of the accident, notifying the police if a hit and run was involved, promptly sending copies of the any legal papers, and obtain written consent to settle with the tortfeasor. Neither insurance policy contained a requirement that the insured must first sue the tortfeasor directly. The Supreme Court did not look beyond the language of the polices and held that the insureds had several duties, but no duty to sue the uncollectible tortfeasor. As such, the Court held, the insureds’ “failure to file a wrongful-death action against the uninsured tortfeasor…does not affect [the insurance companies’] ability to recover uninsured-motorist benefits pursuant to their insurance contracts.
Fronting Policies - Application of O.R.C. 3937.18
Gilcrist v. Gonsor (2004), 104 Ohio St.3d 599, 2004-Ohio-7103
In Gilchrist, the Ohio Supreme Court considered the issue of whether insurance policies with a deductible that matches the limit of liability, known as fronting policies, are subject to the provisions of former R.C. 3937.18. The Court held that they are and since UM/UIM coverage was mandated by former R.C. 3937.18, said mandate also applied to fronting policies.
In Gilchrist, United Rentals, Inc. (URI) filed a claim against United States Fidelity & Guaranty Company (USF & G), URI’s insurer, for UM/UIM coverage. USF & G argued that even though URI purchased an automobile insurance policy, URI was self-insured in the practical sense because the deductible amount of the policy and the liability limits of the policy were the same ($1,000,000). The Supreme Court examined the differences between self-insured entities and those which purchase insurance coverage and held that URI was not self-insured because URI never obtained a certificate of self-insurance but rather purchased a contract of insurance. As such, since UM/UIM coverage was mandated by former R.C. 3937.18, said mandate also applied to fronting policies.
Galatis Applied and Coverage Denied
Reese v. Fid. & Guar. Ins. Underwriter (2004), 158 Ohio App.3d 696, 2004-Ohio-5382
In Reese, the Eighth District Court of Appeals addressed the issue of whether the injured parties, individually and as parents of the injured minor, were entitled to recover uninsured motorist coverage under their Renee Reese’s employer’s business auto, umbrella and commercial general liability provisions. In 1996, Renee Reese and her son sustained injuries after her car crashed following her being cut off by an unidentified driver. At the time of the accident, Renee was on her way to train her replacement worker at her place of employment.
The Court examined each of the three policy provisions separately. First, the Court held that Renee was considered an insured under the Business Auto Policy due to the liberal construction of “You” as enunciated in Scott-Pontzer. However, pursuant to Galatis, Renee must also show that she was acting within the scope of her employment. Generally, “driving to work at a fixed place of employment” does not constitute “acting in the course of [one’s] employment.” As such, she did not qualify as an insured under the Business Auto section.
The Court next examined the Commercial General Liability section wherein the Court examined the language of the policy. It stated, “This insurance does not apply to:…Parking an ‘auto’ on, or on the ways (sic) next to, premises you own or rent…” The Court held that it had previously “construed this provision several times and has consistently held that this one provision does not convert what is otherwise a nonmotor vehicle insurance policy into a motor-vehicle insurance policy.” Further, even in the absence of this holding, Renee was still not “within the scope of employment.”
Next, the Court examined the Commercial Umbrella policy which also included a “scope of employment” requirement. As such, Renee did not qualify under this provision either and therefore no uninsured coverage was available to her or her family under her employer’s three policy provisions.
FIRM UPDATES
Curtin & Associates, LLP continues to try cases involving chiropractic care and treatment in conjunction with limited property damage. On February 7, 2005, Curtin & Associates tried the case of Griffen v. Ammar in the Stark County Court of Common Pleas before the Honorable Judge Lee Sinclair. In Griffen, the plaintiffs had treated at West Tusc. Chiropractic and accumulated approximately $8,000 in medical bills (combined for two plaintiffs) from that facility. However, there was limited property damage done to their motor vehicle and the case proceeded to trial. The defendant stipulated negligence for the accident, but denied that the negligence was the proximate cause of injury to the plaintiffs.
The jury returned a unanimous verdict in favor of the defendant.
On February 10, 2005, Curtin & Associates, LLP commenced the trial of Bradley v. McNeil in the Summit County Court of Common Pleas before the Honorable Judge Hunter. This particular case involved approximately $1,800 in property damage to the rear portion of the plaintiff’s motor vehicle and chiropractic care and treatment in the amount of $2,700 at Rolling Acre Chiropractic. Through discovery efforts, Curtin & Associates, LLP was able to develop information with regard to business practices at Rolling Acres Chiropractic. The defense stipulated negligence, but contested whether the plaintiff could prove an injury as a proximate result of the accident. At the conclusion of the case, the jury returned a defense verdict.
On or about January 6, 2005, Curtin & Associates, LLP was prepared to try the matter of Wright v. Yeager in the Franklin County Municipal Court, Columbus, Ohio. Curtin & Associates, LLP advised counsel for the plaintiff that no offer would be extended and instead the company was willing to try the case to a conclusion. This particular matter involved limited property damage to the rear portion of the plaintiff’s motor vehicle, chiropractic care and treatment and the defense stipulated that it was negligent for the accident, but questioned the issue of damages. Counsel for the plaintiff dismissed the case and advised defense counsel that the case would not be refiled.
Several clients have requested the dissemination of this information.
The information contained in this newsletter is not a legal opinion and is for informational purposes only. Specific questions should be directed to an attorney for a legal opinion.
Failure to File Lawsuit Against Uninsured Motorist Does Not Bar Uninsured Motorist Claim.
Posner v. St. Paul Fire & Marine, Inc. (2004), 104 Ohio St.3d 621, 2004-Ohio-7105
In Posner, the Ohio Supreme Court considered whether “if an insured does not file a wrongful death suit against the tortfeasor with[in] the two year statute of limitations set forth in R.C. 2125.02(D), is he or she ‘legally entitled to recover damages’ against the tortfeasor under R.C. 3937.18 and, therefore, able to maintain an un[der]insured or uninsured motorists claim?” The Court determined that it would only examine the statute if the polices at issue did not address this issue. Further, since the policies “at issue in this case make filing a lawsuit nonmandatory…[there was no] need for this court to interpret R.C. 3937.18.” Thus, the analysis was based solely upon the policy language.
In Posner, Wanda Chenault died as a result of being injured by an uninsured and uncollectible motorist. Several of her relatives submitted UM/UIM claims under their own policies issued by Nationwide and Motorists Mutual. The insureds notified their respective carriers but none of them sued the tortfeasor within the applicable statute of limitations. Afterwards, declaratory judgment actions were brought by the insureds and the cases were consolidated.
The Supreme Court examined two insurance policies, one written by Nationwide and the other by Motorist Mutual. In reviewing both policies, several duties must be undertaken by the insured prior to seeking UM/UIM coverage. Some of these duties included prompt notification of the accident, notifying the police if a hit and run was involved, promptly sending copies of the any legal papers, and obtain written consent to settle with the tortfeasor. Neither insurance policy contained a requirement that the insured must first sue the tortfeasor directly. The Supreme Court did not look beyond the language of the polices and held that the insureds had several duties, but no duty to sue the uncollectible tortfeasor. As such, the Court held, the insureds’ “failure to file a wrongful-death action against the uninsured tortfeasor…does not affect [the insurance companies’] ability to recover uninsured-motorist benefits pursuant to their insurance contracts.
Fronting Policies - Application of O.R.C. 3937.18
Gilcrist v. Gonsor (2004), 104 Ohio St.3d 599, 2004-Ohio-7103
In Gilchrist, the Ohio Supreme Court considered the issue of whether insurance policies with a deductible that matches the limit of liability, known as fronting policies, are subject to the provisions of former R.C. 3937.18. The Court held that they are and since UM/UIM coverage was mandated by former R.C. 3937.18, said mandate also applied to fronting policies.
In Gilchrist, United Rentals, Inc. (URI) filed a claim against United States Fidelity & Guaranty Company (USF & G), URI’s insurer, for UM/UIM coverage. USF & G argued that even though URI purchased an automobile insurance policy, URI was self-insured in the practical sense because the deductible amount of the policy and the liability limits of the policy were the same ($1,000,000). The Supreme Court examined the differences between self-insured entities and those which purchase insurance coverage and held that URI was not self-insured because URI never obtained a certificate of self-insurance but rather purchased a contract of insurance. As such, since UM/UIM coverage was mandated by former R.C. 3937.18, said mandate also applied to fronting policies.
Galatis Applied and Coverage Denied
Reese v. Fid. & Guar. Ins. Underwriter (2004), 158 Ohio App.3d 696, 2004-Ohio-5382
In Reese, the Eighth District Court of Appeals addressed the issue of whether the injured parties, individually and as parents of the injured minor, were entitled to recover uninsured motorist coverage under their Renee Reese’s employer’s business auto, umbrella and commercial general liability provisions. In 1996, Renee Reese and her son sustained injuries after her car crashed following her being cut off by an unidentified driver. At the time of the accident, Renee was on her way to train her replacement worker at her place of employment.
The Court examined each of the three policy provisions separately. First, the Court held that Renee was considered an insured under the Business Auto Policy due to the liberal construction of “You” as enunciated in Scott-Pontzer. However, pursuant to Galatis, Renee must also show that she was acting within the scope of her employment. Generally, “driving to work at a fixed place of employment” does not constitute “acting in the course of [one’s] employment.” As such, she did not qualify as an insured under the Business Auto section.
The Court next examined the Commercial General Liability section wherein the Court examined the language of the policy. It stated, “This insurance does not apply to:…Parking an ‘auto’ on, or on the ways (sic) next to, premises you own or rent…” The Court held that it had previously “construed this provision several times and has consistently held that this one provision does not convert what is otherwise a nonmotor vehicle insurance policy into a motor-vehicle insurance policy.” Further, even in the absence of this holding, Renee was still not “within the scope of employment.”
Next, the Court examined the Commercial Umbrella policy which also included a “scope of employment” requirement. As such, Renee did not qualify under this provision either and therefore no uninsured coverage was available to her or her family under her employer’s three policy provisions.
FIRM UPDATES
Curtin & Associates, LLP continues to try cases involving chiropractic care and treatment in conjunction with limited property damage. On February 7, 2005, Curtin & Associates tried the case of Griffen v. Ammar in the Stark County Court of Common Pleas before the Honorable Judge Lee Sinclair. In Griffen, the plaintiffs had treated at West Tusc. Chiropractic and accumulated approximately $8,000 in medical bills (combined for two plaintiffs) from that facility. However, there was limited property damage done to their motor vehicle and the case proceeded to trial. The defendant stipulated negligence for the accident, but denied that the negligence was the proximate cause of injury to the plaintiffs.
The jury returned a unanimous verdict in favor of the defendant.
On February 10, 2005, Curtin & Associates, LLP commenced the trial of Bradley v. McNeil in the Summit County Court of Common Pleas before the Honorable Judge Hunter. This particular case involved approximately $1,800 in property damage to the rear portion of the plaintiff’s motor vehicle and chiropractic care and treatment in the amount of $2,700 at Rolling Acre Chiropractic. Through discovery efforts, Curtin & Associates, LLP was able to develop information with regard to business practices at Rolling Acres Chiropractic. The defense stipulated negligence, but contested whether the plaintiff could prove an injury as a proximate result of the accident. At the conclusion of the case, the jury returned a defense verdict.
On or about January 6, 2005, Curtin & Associates, LLP was prepared to try the matter of Wright v. Yeager in the Franklin County Municipal Court, Columbus, Ohio. Curtin & Associates, LLP advised counsel for the plaintiff that no offer would be extended and instead the company was willing to try the case to a conclusion. This particular matter involved limited property damage to the rear portion of the plaintiff’s motor vehicle, chiropractic care and treatment and the defense stipulated that it was negligent for the accident, but questioned the issue of damages. Counsel for the plaintiff dismissed the case and advised defense counsel that the case would not be refiled.
Several clients have requested the dissemination of this information.
The information contained in this newsletter is not a legal opinion and is for informational purposes only. Specific questions should be directed to an attorney for a legal opinion.